GUARDIANSHIP ATTORNEY IN FLORIDA
AN OVERVIEW OF GUARDIANSHIPS IN THE STATE OF FLORIDA
Our firm represents clients in the probate of a deceased estate and guardianship matters. We also assist clients with estate planning in the preparation of wills, living wills, powers of attorney and health care surrogates.
A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person and is governed by Chapter 744, Florida Statutes. A guardian is an individual or institution appointed by the court to care for an incapacitated person — called a “ward” or for the ward's assets. An incapacitated person is an adult who has been judicially determined to lack the capacity to manage at least some of his or her property or to meet at least some of the essential health and safety requirements of the person
Florida law requires a person who is appointed to be a guardian over another person to be represented by a Florida attorney. Why? The answer is simple: guardians, whether it is a guardianship over a person or property, have an obligation to the person subject to the guardianship, called a "ward," to do what is always in the ward's best interest. That is a high standard to achieve. Failing to meet that lofty standard may result in civil liability to the ward.
Guardianships arise in Florida in two circumstances. The first is when a child is going to receive an award of $15,000.00 or more from a lawsuit settlement, wrongful death beneficiary, insurance policy award, or inheritance. Florida law presumes that a minor cannot handle a substantial amount of money correctly. The guardian, therefore, looks out for the child's best interests and helps the child secure the money appropriately. The other instance, at the opposite end of the continuum of life, is the most common guardianship. Florida courts appoint guardians to watch over the ward's health and safety and the ward's property because the ward no longer has the mental capacity to perform those daily tasks.
WHO WE ARE AND WHAT WE DO.
At Veliz Katz Law, we are a Central Florida law firm committed to helping people and their families. All tolled we have over 60 years of legal experience representing guardians and wards in Florida. Our experience providing sound legal advice helped our firm become one of the most-trusted probate and guardianship firms in Central Florida. We know the role a guardian plays in the life of a young person coming into money or an older person who has trouble handling his or her daily life. Many times, guardians are family members or close friends who help their loved one when life gets too difficult to handle by taking over health care decisions and financial decisions so that the ward can continue to live with dignity.
Representation of guardians and wards is an essential component of our firm's guardianship practice in Central Florida. Representing guardians and wards, drafting wills, living wills, and other estate planning documents nominating a health care surrogate, make our firm a complete, and well-rounded probate and guardianship firm who has the experience, knowledge, and insight to handle any legal problem you encounter in probate and guardianship court.
DIFFERENCES BETWEEN GUARDIANSHIPS IN FLORIDA
As referenced above, courts appoint guardians for people who do not have the legal capacity to represent themselves. Florida law presumes that a person under 18 cannot handle his or her legal affairs. For example, Florida law, which is the majority rule in the United States, prohibits minors, i.e., someone under 18 years-of-age, to enter into a contract. However, a guardian can employ his or her knowledge and experience to manage the contract for the child. Simply put, the guardian is acting in place of the ward's parents and may do so, depending on the particular situation the ward is in until the child reaches the age of majority.
Adult guardianships follow the same underlying legal principle that the ward cannot care for himself or herself due to incapacity. However, guardianship petitions can be voluntary or involuntary. A court has the authority in particular circumstances to appoint a temporary guardian to act on a limited or emergency basis. The court can also appoint a guardian ad litem, commonly referred to as a GAL, to look after a child's best interest while other issues are pending in court such as a divorce or child custody battle.
A voluntary guardianship may occur when a person surrenders all or part of his or her legal rights to manage his or her property and health care decisions. A guardian in a voluntary guardianship assists the ward in making the right decisions in compliance with the ward's wishes. By contrast, an involuntary guardianship places the decisions the ward would make about his or her health, wellbeing, and property in the hands of a third party. A court must find that the ward is incapacitated before it can appoint a guardian to a ward who is incapacitated — this process beings when a third-party files a petition in court to appoint a guardian.
A temporary guardianship or emergency guardianship occurs when the ward is incapacitated unexpectedly. A judge will appoint the ward a temporary or emergency guardian until the infirmity is lifted or a permanent guardian is appointed.
Guardianships can be "plenary," which means complete, or partial, depending on the circumstances presented by the case before the court. Florida law, however, favors the least restrictive guardianship possible. Thus, the court, in its discretion, can grant powers to a guardian for some matters but not all or require the guardian to work with the ward and make decisions according to the ward's wishes.
The ward can ask a judge to remove or replace the guardian at any time. A judge might change the guardian if the relationship is incompatible, or the judge finds evidence of wrongdoing or neglect.
WHAT DOES "INCAPACITATED" MEAN UNDER FLORIDA LAW?
Incapacitated means more under Florida law than not taking good care of oneself or making ill-advised money decisions. Instead, incapacitated in Florida means that the judge found by clear and convincing evidence that the ward cannot care for his or her needs. The judge may not rely solely on the petitioner's account. Instead, the judge must order a mental and physical exam of the ward. The judge must order a physical assessment of the ward additionally before ruling that the ward is incapacitated, and a guardian must be appointed.
The ward can have a say in the matter. Procedurally in Florida, a potential ward can execute a legal document known as the Declaration of Pre-Need Guardian. A ward who is of sound mind can execute this document in anticipation of becoming incapacitated at some time. The judge can take the ward's preference, as expressed in this document into consideration when appointing a guardian.
HOW IS A PERSON DETERMINED TO BE INCAPACITATED IN ORLANDO?
Any adult may file with the court a petition to determine another person's incapacity setting forth the facts upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians, and a lay person to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated in any way, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.
WHO FILES A PETITION TO DETERMINE A PERSON INCAPACITATED AND WHEN MUST IT BE FILED?
Florida law allows any adult to file a petition in the circuit court having jurisdiction over the municipal subdivision in which the ward resides. A word of caution: Florida law allows a court to assess costs and attorneys' fees against the petitioner if the court finds that the petitioner acted in bad faith by filing the petition.
HELP FILING THE PETITION
Florida circuit judges must apply an exacting standard when reviewing petitions for guardianships. The petitioner must complete the form thoroughly and provide evidence of incapacity. Evidence may come in the form of a letter or note to the court from the ward's primary care physician or other medical evidence.
Our firm understands the process because we have helped numerous clients file guardianship paperwork in courts throughout Central Florida. We know that you are mostly learning a new language when you ask a judge to appoint a guardian for another. Our firm excels in not only explaining what information the court needs to have to approve the guardianship petition but also helping you, as the petitioner, accumulate the right evidence so that you can fill the shoes of the person who needs your help the most.
WHAT PROCESS WILL THE COURT FOLLOW AFTER I FILED THE PETITION?
The court must appoint a reviewing or examining committee for the petition. The examining committee will be made up of three medical professionals who are all capable of rendering an expert opinion on the mental capacity of the ward. The reviewing committee will have either a physician or a psychiatrist. The other two members will be either a psychologist, nurse, licensed social worker, or a gerontologist. The court can appoint any other person to the examining committee the judge sees fit to help the court make its ruling.
The medical professional has only 15 days to meet with the ward. After that, all members of the examining committee must file a report with the court explaining his or her expert opinion about the fitness of the ward to live without the necessity of a guardian. All examiners must serve the attorney for the ward before the hearing and file the report with the judge at least five days before the hearing on the guardianship petition.
The examining witnesses may be called to testify before the judge and will be subject to cross-examination when they testify. The court can hear from other witnesses as well before making its decision. The judge will review all the evidence and weigh the witnesses' testimony to decide the case. If the evidence is clear and convincing to the judge that the ward is incapacitated and there are no other less restrictive alternatives, then the judge will appoint a guardian.
Not every case will require a hearing because the evidence will be overwhelming that the ward needs a guardian. However, it is best to be prepared to take that step should it become necessary.
WHO CAN SERVE AS A GUARDIAN IN FLORIDA?
The importance of the judicial review to the potential ward cannot be understated. A guardianship petition asks a judge to take personal rights away from the individual and grant the power to make those decisions to another person. The judge must vet the guardian to be sure he or she is the right person to undertake the awesome responsibility of acting as a guardian for another.
Florida residents and people who live out of state but are blood relations to the ward may serve as guardians. The judge will give preference to familial or marital relationships. However, a ward need not be related to the guardian. The judge will consider the proposed guardian's educational history, work history, general sophistication, his or her ability to handle financial matters, and other factors that the judge might take into account on behalf of the ward, including the wishes of the ward if he or she submitted a Declaration of Pre-Need Guardianship.
Any adult resident of Florida can serve as guardian, as can certain institutions. A close relative of the ward who does not live in Florida can also serve as guardian.
WHAT DOES A GUARDIAN DO?
A guardian who is given authority over any property of the ward must make a list of the property, invest it prudently, use it for the ward's support, and account for it by filing annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions. The guardian of the person may decide what medical, mental and personal care services are appropriate and determine the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a plan for the ward's care.
If you are seeking counsel for a guardianship, contact the Orlando guardianship law attorneys of Veliz Katz Law for a consultation.
GUARDIAN OF THE WARD VERSUS GUARDIAN OF PROPERTY
As referenced above, Florida law expresses a preference for imposing the least restrictive alternative. In some cases, the least restrictive option might be to appoint a guardian of property rather than of the person if the ward can manage his or her health but can no longer manage finances. A guardian of the property gathers all of the ward's financial information and then safeguards it. The guardian will have the authority to spend money as necessary. However, the guardian must make an accounting to the court every year of the ward's finances.
A guardian of the person might limit the guardianship to caring for the physical and mental health needs of the ward rather than looking after the ward's finances as well. Notwithstanding the distinction between guardianship of the person and guardianship of the property, the court will appoint a guardian to perform both tasks.